93 Decision Citation: BVA 93-14465
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-53 817 ) DATE
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THE ISSUES
1. Whether new and material evidence has been received to reopen
the claim for service connection for bilateral hearing loss
disability.
2. Entitlement to an increased rating for tinea pedis, currently
evaluated as 30 percent disabling.
3. Entitlement to an increased rating for degenerative arthritis
of the cervical and lumbosacral spine, currently evaluated as
40 percent disabling.
REPRESENTATION
Appellant represented by: Division of Veterans' Affairs,
New York
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Sternad, Associate Counse
INTRODUCTION
The appellant served on active duty from September 1946 to
February 1948, and from March 1948 to November 1966.
This matter came before the Board of Veterans' Appeals
(hereinafter the Board) from a rating decision of July 1990 from
the Los Angeles, California, Regional Office. The decision held
that new and material evidence had not been submitted to reopen
the claim for service connection for bilateral hearing loss
disability, and it denied an increased rating in the evaluation
of the service-connected degenerative arthritis of the cervical
and lumbosacral spine. The notice of disagreement was received
in July 1990. A personal hearing was held before a hearing
officer at the Regional Office in Los Angeles, California, in
August 1990. At the hearing, the issue of an increased rating
for the veteran's service-connected skin disorder was raised. By
rating decision of October 1990, increased ratings for the
veteran's skin, neck and back disorders were denied. The
statement of the case was issued in October 1990, and a
substantive appeal was received later that month.
The appeal was received at the Board in December 1990, and
docketed in January 1991. The veteran was then represented in
this appeal by the Military Order of the Purple Heart. That
organization submitted additional written argument, dated in June
1991, which raised the issue of clear and unmistakable error in
the rating decision of November 1967 which, in part, denied
service connection for bilateral hearing loss disability.
In August 1991, the Board remanded the case for further
development. By rating decision of March 1992 from the New York,
New York, Regional Office, an increased rating for the veteran's
service-connected tinea pedis was denied. In addition, the March
1992 decision confirmed and continued the 40 percent evaluation
for the veteran's service-connected neck and back disorders and
continued to deny service connection for bilateral hearing loss
on the basis that no new and material evidence had been received
to warrant a reconsideration of the issue. In a letter dated in
March 1992, the veteran was notified of the denial of an
increased rating for his service-connected skin disorder. A
supplemental statement of the case as to the issues of new and
material evidence to reopen the claim for service connection for
bilateral hearing loss disability and entitlement to an increased
rating for the veteran's service-connected degenerative arthritis
of the cervical and lumbosacral spine was issued also in March
1992. In April 1992, the veteran submitted a notice of
disagreement as to the denial of an increased rating for his
service-connected skin disorder. By rating decision of July
1992, the decision not to reopen the claim for service connection
for bilateral hearing loss disability and the denials of
increased ratings for the veteran's service-connected skin
disorder and arthritis of the cervical and lumbosacral spine were
confirmed and continued. Another supplemental statement of the
case concerning all three issues on appeal was issued in August
1992. The veteran submitted a substantive appeal in September
1992 as to the three issues on appeal. His request for a
personal hearing was later withdrawn.
The appeal was returned to the Board and redocketed in December
1992. The veteran currently is represented by the New York
Division of Veterans' Affairs. The case is now ready for
appellate review.
REMAND
The veteran contends that he was exposed to loud noise during
service. It is contended that there was clear and unmistakable
error in the unappealed rating action of November 1967, which, in
part, denied service connection for bilateral hearing loss
disability. The veteran further contends that he has dermatitis
over his entire body, including his face. He also claims that he
has constant pain in his back, which radiates down his legs.
We find that the veteran has presented evidence of "well-
grounded" claims within the meaning of 38 U.S.C.A. § 5107 (West
1991). That is, we find that the veteran has presented claims
which are plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990).
Such claims need not be conclusive but only possible. Id. Once
the veteran has presented well-grounded claims, the Department of
Veterans Affairs (hereinafter VA) is statutorily obligated to
assist the veteran in developing the facts pertinent to his
claims. 38 U.S.C.A. § 5107. We find that further development is
necessary in this case.
As noted above, the veteran has raised the issue of clear and
unmistakable error in the rating decision of November 1967. We
find that this issue is inextricably intertwined with the issue
on appeal of whether new and material evidence has been received
to reopen the claim for service connection for bilateral hearing
loss disability. Therefore, the RO must adjudicate the issue of
clear and unmistakable error before this appeal may be completed.
In addition, we find that the RO should promulgate a rating
decision which assigns separate disability evaluations for
arthritis of the cervical spine, and arthritis of the lumbosacral
spine. The issue of entitlement to an increased rating for
degenerative arthritis of the cervical and lumbosacral spine is
on appeal currently. By rating decision of November 1967,
service connection for herniated nucleus pulposus (Schmorl's
node) was granted under Diagnostic Code 5293. In subsequent
rating decisions, the back disorder was reevaluated as
degenerative arthritis of the cervical and lumbosacral spine and,
currently, is assigned a 40 percent rating pursuant to Diagnostic
Code 5003-5293.
X-rays at the VA examination in October 1991 demonstrated mild
degenerative change at C6-7 and degenerative joint disease
throughout the lumbar spine with possible mild foraminal
narrowing on the right at L3-4.
The medical evidence of record demonstrates separate back
disabilities pertaining to the cervical spine and the lumbosacral
spine. Therefore, separate disability evaluations should be
assigned to these two different disabilities.
Accordingly, we REMAND this case for the following:
1. The RO should adjudicate the issue of clear
and unmistakable error in the rating decision of
November 1967.
2. The RO should promulgate a rating decision
which assigns separate disability evaluations
for arthritis of the cervical spine, and
arthritis of the lumbosacral spine.
3. The RO should advise the veteran to submit
or identify any additional evidence to support
his claims.
After completion of the requested development, the agency of
original jurisdiction should review the case in light of the
additional development. If any decision remains adverse to the
veteran, he and his representative should be provided with notice
of the additional adjudication and given a reasonable opportunity
to respond. For all issues which the veteran has provided timely
notice of disagreement, the veteran should be provided an
appropriate supplemental statement of the case, and the case
should be returned to the Board for further appellate
consideration. The purpose of this REMAND is to assist the
veteran in the development of his claims, and no action is
required of the veteran until he receives further notice.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
U. R. POWELL PAUL M. SELFON, M.D.
LAWRENCE M. SULLIVAN
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b)(1992).